U.S. v. Hasan

• Citation: 41 F.Supp.2d 1004
• Decision Date: 10 March 1999
• Docket Number: No. 8:92CR12-6.,8:92CR12-6.
• Parties: UNITED STATES of America, Plaintiff, v. Hamedah Ali HASAN, formerly known as Stephanie Lomax, Defendant.
• Court: U.S. District Court — District of Nebraska

Page 1004

41 F.Supp.2d 1004

UNITED STATES of America, Plaintiff, v. Hamedah Ali HASAN, formerly known as Stephanie Lomax, Defendant.

No. 8:92CR12-6.

United States District Court, D. Nebraska.

March 10, 1999.

Michael G. Heavican, Maria R. Moran, Adam C. Cortez, Assistant United States Attorneys, Omaha, NE, for plaintiff.

John Stevens Berry, Michael J. Hansen, Corey Reiman, Lincoln, NE, for defendant.

MEMORANDUM ON SENTENCING

KOPF, District Judge.

This case arises from a prison sentence imposed in 1993. At that time, the defendant was an angry, young, poorly educated, pregnant single mother of two children who had recently converted to the Islamic faith. A jury found that she substantially assisted her male cousin, the leader of a conspiracy, in a successful effort to distribute large quantities of crack cocaine. The jury's verdict was supported by overwhelming evidence of the defendant's guilt. Despite the fact that she had no prior criminal history, the guidelines required, and I imposed, a life sentence. See United States v. McMurray, 833 F.Supp. 1454, 1458-59, 1472-73, 1485 (D.Neb.1993), aff'd 34 F.3d 1405 (8th Cir.1994), cert. denied 513 U.S. 1179, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995).

We now know that Ms. Hasan rejected a plea agreement that would have likely resulted in a prison sentence of between 10 and 13 years. We also now know that she wrongly asserted that her new religion prevented her from accepting such a deal. Her experienced trial lawyer recently questioned whether "she really was fully cognizant of the decision she was making" in refusing the offer.

More than five years have passed since I sentenced the defendant. In the interim, the defendant has given birth in prison to her third child and at least four prison officials have commended her good works. Moreover, an amendment to the guidelines was enacted,¹ and then made retroactive which reduces her base offense level should I decide to resentence her. See U.S.S.G. § 1B1.10(a) & (c) (reduction in term of imprisonment as a result of amended guideline range) (listing Amendment 505 as an amendment to be applied retroactively).

On February 5, 1999, I resolved two motions. One motion was the defendant's section 2255 motion. The other motion was the defendant's motion to reduce her prison term. I denied the section 2255 motion. On the other hand, I granted the motion to reduce the defendant's sentence,² scheduled a sentencing hearing, and gave notice that:

I intend, at a minimum, to resentence the defendant to the lowest sentence allowed by the retroactive guideline amendment. See 18 U.S.C. § 3582(c)(2).³ I also give notice that the court has the authority to consider a downward departure under U.S.S.G. § 5K2.0 (p.s.) at resentencing, and that I am considering such a departure due to the defendant's extraordinary post-offense efforts at rehabilitation.

(Filing 580 at 2-3.)

The government responded to my notice. It admitted, as it had previously done, that I had the authority to resentence the defendant pursuant to Amendment 505. However, the government asserted that I had no jurisdiction to depart downward. After that, we held an evidentiary hearing on the resentencing issue. The defendant and the government were heard.

At the conclusion of the hearing, I applied Amendment 505, departed downward, and resentenced the defendant to 144 months in prison. I now explain why the government is incorrect in its assertion that a district court always lacks the authority to depart downward after applying a retroactive guideline amendment. In short, when the basis for the departure is post-conviction rehabilitation, as opposed to a departure based upon facts that existed at the time of the original sentence, the court has the power to depart.

I. BACKGROUND

A description of the procedural history and factual background of this case is necessary to an understanding of this opinion. I proceed to that description next.

A. The Trial, Sentencing and Appeal

A jury found the defendant guilty of all eight counts of the superseding indictment that pertained to her. The jury found the defendant guilty of conspiracy to distribute cocaine and seven "Pinkerton" counts involving the distribution of cocaine in furtherance of the conspiracy. The defendant was named as an actor in some of the Pinkerton counts but not in others. McMurray, 833 F.Supp. at 1457-58 n. 1.

The trial evidence proved that the defendant, and her cousins, Tracy Lomax and Oscar McMurray, came from Oregon to Nebraska to sell crack cocaine. Thereafter, various other individuals helped them. The conspiracy distributed approximately 12.6 kilos of crack cocaine. Id. at 1469-71.

Tracy Lomax was the undisputed leader of the conspiracy, but the defendant played a significant role. Id. at 1485. The evidence established that Ms. Hasan assisted in the transportation of powder cocaine from the West Coast to Nebraska so that it could be converted into crack cocaine. Ms. Hasan sold kilo quantities of crack cocaine when Tracy Lomax was unavailable. She directed at least one other person to sell crack cocaine. She knew where the crack cocaine was hidden. She wire transferred sums of money amounting to nearly six times the wholesale price of a kilo of crack.

After a lengthy evidentiary hearing, I decided that the defendant was responsible for 5.9 kilograms of crack. Id. at 1472-73. Consequently, her base offense level was 40. Id. at 1472. I also decided that she was a "manager," but not an organizer or leader. Id. at 1485. In addition, I decided that there was no basis to depart downward because the crack guidelines, as compared with the powder cocaine guidelines, violated the defendant's equal protection rights as an African-American. Id. at 1459-67. In the end, the defendant's total offense level was 43 and her criminal history category was I.⁴ Id. at 1485. Using the 1992 manual, the guideline sentence was life in prison. Id.

When the conspiracy began in April of 1988, the defendant was 20 years old. Id. at 1457. n. 1.⁵ At the time of sentencing in 1993, the defendant was 25 years old. Id. at 1458. When I sentenced her, she was unmarried, pregnant and had two children. Id. She had earned enough credits for a general equivalency diploma, and had been on public assistance for the four years preceding her sentencing. Id. She had taken a Muslim name. Id. at 1458 n. 3.

During sentencing, the defendant adamantly denied her guilt, stating that "my long-time suspicions about the Government and this so-called justice system have been confirmed. I have been accused and convicted of crimes in which I am innocent." (Filing 442, sentencing transcript at 8.) She questioned how "elderly, silver-haired, conservative, European-Americans" could sit in judgment of her. (Id. at 9.) She charged that the "government and judicial system" was "unfit to judicate (sic) over anyone." (Id.) She concluded by stating: "I am proud to have submitted to the will of Allah and with Allah ... alone, do I seek refuge." (Id.)

The defendant appealed. Her conviction and sentence was affirmed. McMurray, 34 F.3d 1405. The Court of Appeals found that the "government introduced ample evidence linking [the defendant] to the conspiracy." Id. at 1413. The Court of Appeals also stated that there was "ample testimony from which the district court could have found that [the defendant] was a manager or supervisor in the conspiracy." Id. at 1415. The Supreme Court declined to review the case. McMurray, 513 U.S. 1179, 115 S.Ct. 1164, 130 L.Ed.2d 1119.

B. The Section 2255 Motion

As noted earlier, there were two motions pending before me. One was a section 2255 motion, and the other was a motion seeking to reduce the prison sentence. The evidence regarding the section 2255 motion is also pertinent to the motion to reduce sentence. That being said, I proceed next to briefly describe the 2255 motion, the facts underlying it, Judge Piester's report and recommendation, and my resolution of that motion.

1. Background

The defendant filed a section 2255 motion contending that her conviction ought to be set aside primarily because she believed that she had received ineffective assistance of counsel when her trial lawyer failed to fully advise her that she might be sentenced to life in prison if she rejected a plea offer and was found guilty. (Filing 567, at 1-10.)⁶ After an evidentiary hearing Judge Piester concluded that the defendant's trial counsel had properly advised the defendant and that, in any event, the defendant failed to show prejudice because she would have never accepted the plea agreement. (Id. at 6-10.)

At the evidentiary hearing in support of her motion, Defendant testified that she initially conferred with her court-appointed counsel, Ms. Susan Ann Koenig,⁷ prior to her initial appearance in Omaha. After her initial appearance, Defendant returned to Portland, Oregon, where she was residing at the time she was charged in the indictment. According to Defendant, she met with Ms. Koenig approximately three times prior to her trial, and at no time did Ms. Koenig ever tell her that she could face life imprisonment if she were convicted of the crimes charged. (Filing 566 at 22:122-14.)

Defendant also testified that only twice did Ms. Koenig discuss a possible plea bargain with the government. Defendant stated that on the first occasion Ms. Koenig told her that the government was willing to grant her immunity in exchange for her testimony. (Id. at 24:8-16.) According to Defendant, she rejected the plea offer because, at the time, she erroneously believed that as a Muslim she could not plead to a judge, but only to Allah. (Id. at 24:17-25:11.)

The second occasion occurred on the day of Defendant's trial. (Id. at 26:1-6.) According to Defendant, under the terms of the second agreement, if Defendant pleaded guilty, she would receive a ten-year sentence. (Id. at 26:13-19.) Defendant testified that at the time she rejected this plea bargain,...